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Another (Short) Tale of Open Access: The HathiTrust Case

Traci Zimmerman
Associate Professor
School of Writing, Rhetoric, and Technical Communication
James Madison University

In September of 2011, just two months after Aaron Swartz was arrested for his open-access hacktivism, a lawsuit was brought against the HathiTrust digital repository and five universities: Cornell University, Indiana University, the University of California, the University of Wisconsin, and HathiTrust’s host institution, The University of Michigan at Ann Arbor. The suit was brought by the Authors Guild, along with The Australian Society of Authors, the Quebec writers’ union, and a small number of individual authors. The substance of their claim is not as interesting as the source of their anxiety: in its filing “the Authors Guild expressed deep concern about what would happen if the millions of scanned texts in the HathiTrust repository—files created largely with the help of Google’s book-scanning project—got loose on the Internet.”1

It is certainly not surprising that the Authors Guild, which brought suit against Google in 2005, would be interested in this repository, since it was (at least in part) made possible by Google. And with all of the recent focus on large scale digitizing projects, whether for open access or commercial success, it is easy for the individual author to get lost in the digital wilderness, or to feel as if they are “little more than cogs in the vast content machine.”2 Up until now, libraries and universities were not counted as part of this “machine”; under this lawsuit, however, they seem to be lumped in with their for-profit counterparts.

HathiTrust is a large-scale digital repository that partners with over 50 institutions to digitize and preserve books and other materials.3 The suit claims that the defendants have engaged in the “systematic, concerted, widespread, and unauthorized reproduction and distribution” of approximately seven million copyrighted works.4 It asks that the court restrict “all unauthorized digital copies” currently held by the defendants and that it prevent the defendants from giving Google permission to scan additional works.5 Coming just two months after Aaron Swartz’s very public arrest for making “locked up” JSTOR content public, this lawsuit reflects a real anxiety for the security (or lack thereof) of their clients’ intellectual property. Scott Turow, the President of the Authors Guild, went so far as to claim that “these books, because of the universities’ and Google’s unlawful actions, are now at needless, intolerable digital risk.”6  Whether the digitizing of books is a “needless” act is quite debatable; as to the “intolerable risk” about which Turow speaks, it stems from the fact that these works are held by universities that “can’t be sued for damages because as state institutions they enjoy sovereign-immunity protection from prosecution.”7 This is why the lawsuit does not seek monetary damages, only that the files be seized and future scanning stopped. Paul Aiken, Executive Director of the Authors Guild, noted that suing libraries is not a great way to win friends or influence people: “believe me,” he says, “this is not a lawsuit that anyone looks forward to bringing, but these are real property rights that real authors have. It’s their hard work, and even an institution with the best of intentions that loses seven million unencrypted PDF’s of the world’s greatest literature can do a huge amount of damage to the value of those works.”8

Kara Novak of Public Knowledge begs to differ with the position brought by the Authors Guild.  She writes in a blog post about the case: “Instead of fighting for copyright protection where none exists, the Authors Guild should work with the technology that quickly disseminates authors’ works and create new business models that will bring in money earned from digital book sales.  It is time for the Authors Guild to focus less on litigation to impound its works under top security and turn its attention to creating the artistic work it claims to protect.”9

Ironically, in a suit that claims to be focused on the rights of individual authors and scholars, the focus is squarely on libraries, and “how far the scope of an academic library goes.”10  “It’s a very curious suit,” claims Jonathan Band, a copyright lawyer who works a great deal with libraries, because “from the substantive point of view, the legal position of the libraries is extremely strong.”11

This is indeed a case to be curious about. The court has set a deadline of May 20, 2012 for the discovery phase to conclude; a trial will commence in November if the case is not settled or dismissed by then.

1Jennifer Howard “HathiTrust Case Highlights Authors’ Fears about Fate of their Work Online.”  In October 2, 2011 Chronicle Online.
2Qtd, in Howard, 10/2/11.
3Jennifer Howard.  “In Authors’ Suit Against Libraries, an Attempt to Wrest Back Some Control Over Digitized Works.” In September 14, 2011 Chronicle Online.
4Qtd in Howard, 9/14/11.
5Qtd in Howard, 9/14/11.
6Qtd in Howard, 9/14/11.
9Qtd in Howard, 10/2/2011.
10Qtd in Howard 9/14/11.

This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles to either this column or to an annual report on intellectual property issues, please contact

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